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| District court declares Obama immigration action unconstitutional | District court declares Obama immigration action unconstitutional |
| (about 2 hours later) | |
| Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional. | Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional. |
| According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals. As a consequence, Schwab concluded, the action exceeds the scope of executive authority. | According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals. As a consequence, Schwab concluded, the action exceeds the scope of executive authority. |
| This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States. [I've now posted the opinion here.] | This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States. [I've now posted the opinion here.] |
| The procedural background of the case is somewhat unusual. The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation. In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence. | The procedural background of the case is somewhat unusual. The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation. In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence. |
| This isn’t the only case challenging the lawfulness of the Obama’s immigration actions. Some two-dozen states have filed suit challenging Obama’s recent immigration policy reforms. Led by Texas, these states claim that the president as exceeded the scope of executive authority in this area. As I’ve noted before, I’m skeptical of these arguments on the merits (as is Ilya), and wonder whether the states will be able to satisfy the requirements of Article III standing to bring their claims. Yet as this case shows, even if the states don’t have standing, the legality of the president’s actions could nonetheless be decided in federal court. | This isn’t the only case challenging the lawfulness of the Obama’s immigration actions. Some two-dozen states have filed suit challenging Obama’s recent immigration policy reforms. Led by Texas, these states claim that the president as exceeded the scope of executive authority in this area. As I’ve noted before, I’m skeptical of these arguments on the merits (as is Ilya), and wonder whether the states will be able to satisfy the requirements of Article III standing to bring their claims. Yet as this case shows, even if the states don’t have standing, the legality of the president’s actions could nonetheless be decided in federal court. |
| UPDATE: Here are some additional thoughts on the ruling. | |
| It is quite unusual for a district court to reach this sort of constitutional issue in this sort of case. Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President’s actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court’s decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy. | |
| On the merits, I understand the concerns that motivate Judge Schwab’s reasoning, but I am not persuaded. First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades. Work permits have been issued in conjunction with deferred action for at least forty years. President Obama’s actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced. | |
| It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country. This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful. The new policy does not preclude the executive branch from revoking deferred action in individual cases and does not create any enforceable rights against future executive action. It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution. President Obama’s action may be broader than many are comfortable with, and it is understandably hard to stomach given all the President’s prior statements disclaiming authority to take these steps — but such concerns are rooted in customary political norms, not judicially enforceable constitutional rules. |